CCAR RESPONSA

Contemporary American Reform Responsa

38. Patrilineal and Matrilineal Descent

QUESTION: What are the origins of matrilineal descent in the Jewish tradition; what halakhic justification is there for the recent Central Conference of American Rabbi's resolution on matrilineal and patrilineal descent which also adds various requirements for the establishment of Jewish status?

ANSWER: We shall deal first with the question of matrilineal and patrilineal descent. Subsequently we shall turn to the required positive "acts of identification."

It is clear that for the last two thousands years the Jewish identity of a child has been determined by matrilineal descent. In other words, the child of a Jewish mother was Jewish irrespective of the father (Deut. 7.3, 4; M. Kid. 3.12; Kid. 70a, 75b; Yeb. 16b, 23a, 44a, 45b; A. Z. 59a; J. Yeb. 5.15 (6c), 7.5 (8b); J. Kid. 3.12 (64d); Yad Issurei Biah 15.3 f; etc. ). The Talmudic discussion and that of the later codes indicate the reasoning behind this rule.

The rabbinic decision that the child follow the religion of the mother solves the problem for offspring from illicit intercourse of unions which are not recognized, or in which paternity could not be established, or in which the father disappeared. This practice may have originated in the period of Ezra (Ezra 10 3; Neh. 13.23 ff) and may parallel that of Pericles of Athens who sought to limit citizenship to descendants of Athenian mothers (G. F. Moore, Judaism, Vol. 1, p. 20). It may also have represented temporary, emergency legislation of that period. We hear nothing about such a permanent change till early rabbinic times, then the union between a Jew and a non-Jew was considered to have no legal status (lo tafsei qiddushin). At one stage in the Talmudic discussions, an authority, Jacob of Kefar Neburya, considered a child of such a union Jewish, but subsequently retracted his opinion when faced with a verse from Ezra quoted by R. Haggai (J. Kid. 64d; J. Yeb. 4a; see Shaye J. D. Cohen, "The Origin of the Matrilineal Principle in Rabbinic Law," Judaism, Winter, 1984, note 54). R. Judah in the name of R. Assi considered a union between a Jew and non-Jew valid in "his time" as the non-Jew might be a descendent of the lost ten tribes (Yeb. 16b). Many authorities considered children of all such unions as mamzerim. They felt that the danger lay with non-Jewish women who could not be trusted to establish the Jewish paternity of their child, though that was contested by others.

The statement which grants the status of the mother to the child saves that child from the status of mamzerut or other similar disabling category. There was considerable disagreement before the decision later universally accepted was reached (Kid. 66b ff; Shulhan Arukh Even Haezer 4.19 and commentaries). The discussions demonstrate that this decision represented rabbinic reaction to specific problems.

We should contrast the rabbinic position to the view of the earlier Biblical and post-Biblical period. Patrilineal descent was the primary way of determining the status of children in this period. The Biblical traditions and their early rabbinic commentaries take it for granted that the paternal line was decisive in the tracing of descent, tribal identity, or priestly status. A glance at the Biblical genealogies makes this clear. In inter-tribal marriage paternal descent was likewise decisive (Nu. 1.2, l'mishpehotam l'veit avotam); the line of the father was recognized while the line of the mother was not (mishpahat av keruyah mishpahah, mishpahat em enah keruyah mishpahah, B. B. 109b; Yeb. 54b; Yad Hil. Nahalot 1.6, etc.).

We should also recognize that later rabbinic tradition did not shift to the matrilineal line when conditions did not demand it. Therefore, the rabbinic tradition remained patrilineal in the descent of the priesthood; it was and remains the male kohen who determines the status of his children. The child is a kohen even if the father married a Levite or an Israelite. Thus lineage was and continues to be determined by the male alone whenever the marriage is otherwise proper (M. Kid. 3.12; Kid. 29a; Shulhan Arukh Yoreh Deah 245.1).

If a marriage is valid but originally forbidden, (marriage with someone improperly divorced, etc.), then the tainted parent, whether mother or father, determines lineage (Kid. 66b; Shulhan Arukh Even Haezer 4.18). The same rule applies to children born out of wedlock if both parents are known.

Matrilineal descent, although generally accepted for the union of a Jew and a non-Jew, has rested on an uncertain basis. Some have deduced it from Deuteronomy 7.4, others from Ezra 9 and 10. Still others feel that the dominant influence of the mother during the formative years accounted for this principle. A few modern scholars felt that the rabbinic statement followed the Roman Paulus (Digest 2.4 f), who stated that the maternity was always known while paternity was doubtful; this, however, could be extended to the offspring of any parents. Shaye Cohen has also suggested that the rabbis may have abhorred this type of mixture of people as they felt negatively toward mixtures of animals and materials. A full discussion of this and other material may be found in Aptowtizer's "Spuren des Matriarchats im jüdischen Schriftum," Hebrew Union College Annual, Vols. 4 and 5 and Shaye J. D. Cohen's "The Origin of the Matrilineal Principle in Rabbinic Law," Judaism, Winter, 1984.

We should note that the Karaites considered the offspring of a Jewish father and a Gentile mother to be a Jew. It is, however, not clear from the sources available to me whether the conversion of the mother to Judaism may not have been implied (B. Revel, "The Karaite Halakhah," Jewish Quarterly Review III, pp. 375 f. ) The matter continues to be debated.

These discussions show us that our tradition responded to particular needs. It changed the laws of descent to meet the problems of a specific age and if those problems persisted, then the changes remained in effect.

The previous cited material has dealt with situations entirely different from those which have arisen in the last century and a half. Unions between Jews and non-Jews during earlier times remained rare. Furthermore, the cultural and sociological relationship with the people among whom we lived did not approach the freedom and equality which most Jews in the Western World now enjoy.

We in the twentieth century have been faced with an increasing number of mixed marriages, with changes in the structure of the family, and with the development of a new relationship between men and women. This has been reflected in the carefully worded statement by the Committee on Patrilineal Descent (W. Jacob, American Reform Responsa, Appendix).

We may elaborate further with the following statements which reflect the previously cited historical background, the introduction to the resolution as well as other concerns. We shall turn first to the question of descent and then to the required "acts of identification."

1. In the Biblical period, till the time of Ezra or beyond, patrilineal descent determined the status of a child, so the children of the kings of Israel married to non-Jewish wives were unquestionably Jewish. This was equally true of other figures. Furthermore, our tradition has generally determined lineage (yihus) through the father, i.e., in all valid but originally forbidden marriages. This was also true for priestly, Levitical and Israelite lineage which was and continues to be traced through the paternal line (Nu. 1.2, 18; Yad Hil. Issurei Biah 19.15; Shulhan Arukh Even Haezer 8.1) . If a marriage was valid, but originally forbidden, then the tainted parent (mother or father) determines status (Kid. 66b; Shulhan Arukh Even Haezer 4.18). The same rule applies to children born out of wedlock if both parents are known.

Yihus was considered significant, especially in the Biblical period, and long genealogical lines were recorded; an effort was made in the time of Ezra and, subsequently, to guarantee pure lines of descent and precise records were maintained (Ezra 2:59 ff; genealogies of I, II Chronicles). An echo of that practice of recording genealogies remained in the Mishnah and Talmud despite the difficulties caused by the wars of the first and second century which led to the destruction of many records (M. Kid. 4.1; Kid. 28a, 70a ff). In the Biblical period and in specific later instances, lineage was determined by the father.

2. Mishnaic and Talmudic authorities changed the Biblical laws of descent, as shown earlier in this responsum, as well as many others when social or religious conditions warranted it. Family law was changed in many other ways as demonstrated by the laws of marriage. For example, the Talmudic authorities validated the marriage of Boaz to Ruth, the Moabites, despite the strict ruling against such marriages (Deut. 23.4); they indicated that the Biblical rule applied only to males, not to females (Yeb. 76b ff). Earlier the Mishnah (Yad. 4.4) claimed that the various ethnic groups had been so intermingled by the invasion of Sennacherib that none of the prohibitions against marriage with neighboring people remained valid. In this instance and others similar to them, we are dealing with clear Biblical injunctions which have been revised by the rabbinic tradition. We have followed these examples in our own twentieth century revision.

3. The Reform movement has espoused the equality of men and women, virtually since its inception (J. R. Marcus, Israel Jacobson, p. 146; W. G. Plaut, The Rise of Reform Judaism, pp. 252 ff). As equality has been applied to every facet of Reform Jewish life, it should be applied in this instance.

4. We, and virtually all Jews, recognize a civil marriage between a Jew and a Gentile as a marriage although not quidushin, and have done so since the French Sanhedrin of 1807 (Tama, Transactions of the Parisian Sanhedrin - Tr. F. Kerwan, p. 155 f; Plaut, op. cit., p. 219). We are morally obliged to make provisions for the offsprings of such a union when either the father or mother seek to have their children recognized and educated as a Jew.

5. We agree with the Israeli courts and their decisions on the matter of status for purposes of leam, the registration of the nationality of immigrants and the right to immigrate under the Law of Return. Such rulings are secular in nature and do not bind the Israeli rabbinic courts or us, yet they have far reaching implications for all Jews. In the Brother Daniel case of 1962, this apostate was not judged to be Jewish although he had a Jewish mother (1962 - 16 - P.D. 2428). The court decided that a Jew who practiced another religion would not be considered Jewish despite his descent from a Jewish mother. "Acts of religious identification" were determinative for secular purposes of the State of Israel. The court recognized that this had no effect on the rabbinic courts; nonetheless, it marked a radical change which deals with new conditions.

Earlier in March, 1958, the Minister of Interior, Israel Bar-Yehuda, issued a directive which stated that "any person declaring in good faith that he is a Jew, shall be registered as a Jew." No inquiry about parents was authorized. In the case of children, "if both parents declare that the child is Jewish, the declaration shall be regarded as though it were legal declaration of the child itself" (S. Z. Abramov, Perpetual Dilemma, p. 290; Schlesinger v. Minister of Interior 1963 - I - 17 P.D. 225; Shalit v. Minister of Interior 1968 - II - 231P.D.477-608) . This was for the purposes of immigration and Israeli registration. It represented the farthest stance away from halakhah which any official body in the State of Israel has taken in this matter. It remained law until challenged and later legislation replaced it. There have been a number of other decisions which have dealt with this matter.

The current law, passed in 1970 after a government crisis over the question of "Who is a Jew," reads, "for the purpose of this law, Jew means a person born to a Jewish mother, or who has become converted to Judaism, and who is not a member of another religion" (Law of Return -Amendment, March, 1970, #4b; M. D. Goldman, Israel Nationality Law, p. 142; Israel Law Journal, Vol. 5, #2, p. 264). Orthodox efforts to change this to read "converted according to halakhah" have been defeated on various occasions. We should note that although the definition of a Jew was narrowed, another section of the law broadened the effect of the Law of Return and included "the child and grandchild of a Jew, the spouse of a Jew and the spouse of the child and grandchild of a Jew - with the exception of a person who was a Jew and willingly changed his religion" (Law of Return Amendment #2, #4a, March, 1970). This meant that a dual definition (descendants from Jewish mothers or fathers) has remained operative for immigration into the State of Israel.

The decision of an Israeli Court is a secular decision. It is, of course, not determinative for us as American Reform Jews, but we should note that their line of reasoning is somewhat similar to ours. We also see flexibility to meet new problems expressed in these decisions.

For the reasons cited in the introduction to the Resolution, those stated above and others, we have equated matrilineal and patrilineal descent in the determination of Jewish identity of a child of a mixed marriage.

Now let us turn to the section of the resolution which deals with "positive acts of identification." There are both traditional and modern considerations for requiring such acts and not relying on birth alone.

The clause which deals with the "appropriate and timely acts of identification with the Jewish faith and people..." has gone beyond the traditional requirements for consideration as a Jew. Here we have become stricter than traditional Judaism. We have done so as the normal life of Jews has changed during the last two centuries.

In earlier periods of our history, individuals whose status was doubtful were limited in number. The question became significant only during the period of the Marranos. When such individuals identified themselves and lived as part of the Jewish community, they joined a semi-autonomous corporate community largely cut off from the surrounding world. Its entire way of life was Jewish. Emancipation changed this condition. It is difficult for those of doubtful status to integrate in an effortless way as was possible in earlier periods of our history. They and virtually all Jews live in two worlds.

We are dealing with a large number of individuals in our open American society as well as in all western lands. The Jewish status of a potentially large number of immigrants from the Soviet Union is also doubtful.

In order to overcome these problems as well as others, we now require "appropriate and timely public and formal acts..." The requirement has been worded to permit some flexibility for individual circumstances. With time and experience, custom will designate certain acts as appropriate and others not. It would be wrong, however, to set limits now at the beginning of the process.

We are aware that we have made more stringent requirements than our tradition. We believe that this will lead to a firmer commitment to Judaism on the part of these individuals and that it will enable them to become fully integrated into the Jewish community. We have taken this step for the following additional reasons:

1. We do not view birth as a determining factor in the religious identification of children of a mixed marriage.

2. We distinguish between descent and identification.

3. The mobility of American Jews has diminished the influence of the extended family upon such a child. This means that a significant informal bond with Judaism which played a role in the past does not exist for our generation.

4. Education has always been a strong factor in Jewish identity. In the recent past we could assume a minimal Jewish education for most children. In our time almost half the American Jewish community remains unaffiliated, and their children receive no Jewish education.

For those reasons the Central Conference of American Rabbis has declared: "The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these mitzvot serves to commit those who participate in them, both parents and child, to Jewish life.

"Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi."

October 1983

If needed, please consult Abbreviations used in CCAR Responsa.